HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pedro Vanegas
Applicant
-and-
Liverton Hotels International Inc. o/a Metropolitan Hotel
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as : Vanegas v. Liverton Hotels International Inc.
APPEARANCES BY
Pedro Vanegas, Applicant ) Self-represented
Liverton Hotels International Inc. o/a Metropolitan Hotel, Respondent ) Michael Richards, Counsel and Susan Kacaba, Student-at-law
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), dated May 15, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 16, 2005.
2The complaint alleges that the applicant experienced discrimination in employment because of disability contrary to ss. 5(1) and 9 of the Code, arising out of injuries alleged to have been sustained in a workplace incident on September 27, 2003 and alleges that the respondent failed to accommodate this injury by providing the applicant with modified duties.
3Together with his Application, the applicant filed a document entitled “Amendment” which purports to amend his human rights complaint, and alleges discrimination and harassment because of race, sex, ethnic origin and disability. This document also purports to add two additional personal respondents as parties to this proceeding. The respondent objects to these additional allegations and the attempt to add personal respondents on the basis that this is beyond the proper scope of the subject-matter of the complaint.
Hearing process
4The hearing in this matter was held on May 26 and 27, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in a highly expeditious manner.
5At the commencement of the hearing, I noted that there were four preliminary issues before me:
a) The respondent’s request to dismiss the application pursuant to s. 45.1 of the Code or as an abuse of process on the basis of a settlement concluded in the context of a proceeding before the Ontario Labour Relations Board (“OLRB”);
b) An issue regarding the proper scope of the issues addressed by the Application and the applicant’s request to amend his complaint;
c) The request by the applicant to add two additional personal respondents; and
d) The request by the respondents to remove Ms. Holle as a personal respondent.
6I noted that it was clear that no-one disagreed that there is an issue regarding whether any medical restrictions subsequent to the September 27, 2003 incident were properly accommodated by the respondent (the “accommodation issue”), as that is clearly dealt with on the face of the complaint. I also noted that there was a good deal of evidence and submissions that I needed to hear in relation to that issue that likely would take up the bulk of the hearing time scheduled for the two days on May 26 and 27, 2010.
7Accordingly, I proposed that the hearing focus on the accommodation issue for now, and that I would hear all evidence relating to that one issue and then would hear final submissions from the parties on that issue. I further proposed that when making their final submissions, the parties also could make any further submissions they wished to make in addition to the written submissions already filed, regarding the proper scope of the issues raised in this Application, whether an amendment to the complaint should be allowed, whether the two individuals should be added as personal respondents, and whether Ms. Holle should be removed as a personal respondent.
8I also proposed to bifurcate the proceeding so that the matter of whether the Code was violated in relation to the accommodation issue would be dealt with first and then, at a subsequent time and only if I found a Code violation, I would hear evidence relating to remedy.
9I proposed that after hearing the parties’ evidence on the accommodation issue and their submissions on that issue and the various preliminary issues, I would then go away and consider all that I had heard and issue a decision on those issues. I explained to the parties that, if I decided that the Application is limited only to the accommodation issue, then I would simply issue my decision on that issue. If I found a violation of the Code on that issue, then I would set out a process to deal with remedy; if not, then the proceeding would be at an end. Alternatively, if I decided to allow the expansion of the Application to deal with other issues, I would notify the parties and provide reasons for that, and would establish a process to hear evidence relating to any other issues I found were within the scope of the Application.
10As a result, I explained to the parties that basically my proposal was to defer consideration of three of the four preliminary issues until after I had heard evidence regarding the accommodation issue, which would leave only the issue regarding the settlement at the OLRB to be determined as a preliminary issue.
11I then invited submissions from the parties regarding my proposal. I started first with the applicant, who stated that he was okay with what I was proposing. I clarified with the applicant that this meant that the hearing would deal only with evidence from September 27, 2003 forward and would not get into prior issues relating to the harassment allegations he had raised in the amendment document included with his Application. The applicant responded that he understood and agreed with this. The respondents also consented to my proposed method of proceeding.
12After hearing submissions and ruling on the OLRB settlement issue, I proposed to take the lead in questioning the witnesses. I expressed my view that, in the specific circumstances of this case and given the issues that arise, it would make sense to hear from the respondents first, so I proposed to question Ms. Holle to hear her evidence regarding what medical restrictions she was aware of, what accommodations were offered and/or possible, and to deal with her evidence relating to specific periods of time following the Sept 27, 2003 incident. After this, I proposed to question the applicant to obtain his evidence in response to what he had heard from the respondents, and I then proposed to go back to the respondents to hear any further evidence from them arising out of the applicant’s evidence. I proposed to afford the parties the opportunity to cross-examine opposing witnesses after I had concluded my questioning of all witnesses. And after that, I proposed to hear final submissions from the parties on the accommodation issue as well as any further submissions on the remaining preliminary issues. I invited submissions on this proposal from the parties, and all parties expressed that they were content to proceed in the manner proposed.
13At later points during the course of the hearing, the applicant wanted to provide evidence relating to the pre-September 27, 2003 allegations, and I reminded him that we were not dealing with those allegations at this phase of the hearing, pending my ruling on the scope of the Application and any amendment.
14I am aware from materials filed by the applicant subsequent to the hearing that he alleges that I prevented him from providing evidence regarding his pre-September 27, 2003 allegations (although elsewhere in these materials, he states that he made a “mistake” in agreeing with my proposal). It is correct that I asked the applicant to focus his evidence on the accommodation issue and the events from and after September 27, 2003, as this was the issue that all parties had agreed to focus on at the hearing in accordance with the proposal I presented to them. The alternative would not, as the applicant appears to believe, have been to allow the applicant to provide his evidence on the pre-September 27, 2003 allegations. Rather, the alternative would have been to hear the parties’ submissions on the proper scope of the complaint and the applicant’s request to amend his complaint and add two additional personal respondents, and then for me to make a ruling on that issue before the parties proceeded to present any evidence.
15I took great pains at the commencement of the hearing to explain this to the parties, and particularly to the applicant who was self-represented. The applicant, at his request, had a translator available to assist him at the hearing. At the outset of the hearing, when the translator was introduced to me, I expressly asked the applicant how he wished to use the translator: whether he wanted the translator to translate every word stated at the hearing, or whether he wanted simply to be able to consult with the translator as he may require in order to understand or express certain specific things. Translators have been used before me in both capacities, and I had no interest either way in what manner the applicant chose to use the translator. The applicant chose to consult with the translator as he may need to during the course of the hearing.
16I am aware from materials filed by the applicant subsequent to the hearing that he does not believe that the translator was of assistance to him. No such issue was raised before me at the hearing. My impression of the applicant at the hearing is that he was very capable of understanding and expressing himself in English, albeit at times imperfectly. I had no difficulty understanding the applicant’s answers to the questions posed to him or his submissions, and he had no apparent difficulty in understanding the respondents’ evidence and submissions. Certainly no such issue was raised by him before me. At times the applicant consulted with the translator in order to find the correct words to properly express himself in responding to a question, and I did not detect any difficulty in these exchanges. Once again, no issue was raised by him that on occasions when he sought the assistance of the translator, he was experiencing any difficulty.
17I also am aware from materials filed subsequent to the hearing that the applicant alleges that I did not sufficiently accommodate his emotional disabilities at the hearing. That is not correct. From materials filed by the applicant prior to the hearing, I was aware of his emotional and mental health issues, and was at great pains during the hearing both to advise the applicant that his needs would be accommodated and to accommodate those needs when they arose. There was one issue on the first day when Ms. Holle was giving her evidence, when the applicant started crying. I stopped the hearing and gave the applicant a break to compose himself. When we resumed, I checked with the applicant to make sure that he was okay to proceed, which he said he was. Apart from this one instance, the applicant did not exhibit any other signs of distress or emotional or mental health issues during the course of the hearing and never raised any such issue with me. As previously indicated, my impression was that he was able to understand the evidence given and the questions asked of him and was able to respond.
18Accordingly, I find that the applicant understood and consented to the proposed manner of proceeding with the hearing, including that the hearing on May 26 and 27, 2010 would focus on the accommodation issue and the events from and after September 27, 2003 raised in the complaint as filed with the Commission. I further find that the applicant was not prejudiced at the hearing by the translator afforded to him or by any accommodations required for his emotional or mental health issues, and that no such issues were raised before me at the hearing.
The OLRB settlement
19The respondents took the position that the issues between the parties at least up to August 31, 2004 had been resolved by a settlement in a proceeding before the OLRB which had been commenced by the applicant.
20The applicant commenced a proceeding before the OLRB alleging that his union, HERE Local 75, had breached its duty of fair representation towards him. By settlement agreement dated August 31, 2004 and signed by the applicant and representatives of the union and the employer, the parties agreed to resolve the OLRB proceeding on the basis that the union would take the necessary steps in accordance with its duty of fair representation to get the applicant back to work on modified duties as soon as possible, and that if this proved impossible, the union would next try to get the applicant back on unmodified duties. The union further agreed to take the necessary steps in accordance with its duty of fair representation to get the applicant the compensation owed to him. Finally, if the employer agreed to bring the applicant back to work, the union agreed to take the necessary steps to get him the proper hours according to his seniority and the collective bargaining agreement.
21The respondents submitted that this settlement addressed the return to work issue at least from the time of the incident on September 27, 2003 until August 31, 2004. I disagree. While the settlement certainly resolved the unfair representation application before the OLRB, in the sense that it was effective to bring that proceeding to an end, the settlement did not resolve the underlying issues of the applicant’s claim to return to work on modified or unmodified duties and/or to receive compensation. The settlement merely contemplated that the union would take steps in accordance with its obligation under section 74 of the Labour Relations Act to try to resolve these issues on the applicant’s behalf with the employer. These issues ultimately remained unresolved, as the applicant did not return to work and did not receive compensation. Those are the very issues before me for determination.
22In my view, using the language of s. 45.1 of the Code, I find that the substance of the accommodation issue raised by the Application was not “appropriately dealt with” by the settlement in the OLRB proceeding, as the issues before me were not in fact resolved by that settlement. Nor, given the nature of the settlement reached, do I find that allowing the applicant to proceed with the accommodation issue raised in his Application would be an abuse of process. The applicant is not attempting to circumvent a settlement by re-litigating an issue that already has been resolved. Rather, given that his union was not successful in resolving the issues identified in the OLRB settlement, the applicant is seeking to litigate and have these issues heard and determined for the first time.
23Accordingly, the respondents’ request to dismiss the Application on the basis of the OLRB settlement is denied.
Scope of Application
24As stated above, the applicant filed with his Application a document entitled “Amendment”, in which he raised additional allegations not addressed in his complaint and in which he sought to add two additional personal respondents. The respondents have objected to these additional allegations as being beyond the proper scope of the complaint, and the applicant has sought to amend his complaint and add the additional two personal respondents.
25This is a transitional application made under s. 53(5) of the Code. Section 53(5) of the Code provides that the complainant may make an application to the Tribunal “with respect to the subject-matter of the complaint”.
26Rule 12.3 of the Tribunal’s Transitional Rules states in its relevant part that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission”. While Rule 12.4 contemplates an ability to amend the complaint, this is expressly limited by the words “having regard to Rule 12.3”.
27The Tribunal’s caselaw with respect to transition applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission: DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281.
28There is no dispute that, while the document attached by the applicant to his Application is entitled “Amendment”, no formal amendment of his complaint was made by the Commission prior to the filing of the Application.
29The main thrust of the additional allegations that the applicant seeks to raise is that he experienced discrimination, harassment and a poisoned work environment because of his race, sex, ethnic origin and disability by various individuals in the respondent company’s employ essentially from the time he first commenced his employment in 1996, which was the cause of medical and health issues that he experienced while at work including the incident on September 27, 2003 when he collapsed after experiencing a panic attack.
30The evidence indicates that prior to the September 27, 2003 incident, the applicant had raised his allegations with the respondent employer, although there is some dispute as to the extent and sufficiency of the details or particulars he provided of the alleged discrimination and harassment. Further, the materials filed by the applicant indicate that prior to the September 27, 2003 incident, he had been in contact with the Commission about filing a human rights complaint regarding these allegations. Attached to his Application, the applicant included a letter dated September 19, 2003 to a representative of the Commission setting out specific details and particulars of the alleged discrimination and harassment, although the copy of the letter as attached to the Application is incomplete. The applicant also filed a second letter to the Commission dated November 2, 2003, in which he described for the Commission incidents that had occurred since he had contacted the Commission. In this letter, the applicant refers to his case having been opened by the Commission in June 2003, and he refers to having “filled out” a complaint with the Commission.
31The November 2, 2003 letter includes an inquiry number which gets assigned by the Commission to keep track of its initial contacts with people who wish to file a human rights complaint. This inquiry number is 10062003RGUE-5NDMKT. The first set of numbers indicates the date of initial contact, which would have been June 10, 2003 and accords with what the applicant himself stated in his November 2, 2003 letter. The final 10 characters become the assigned complaint file number if a complaint is actually filed, which means that a complaint form is completed and signed by the complainant, is issued by the Commission, and is served on the respondents. There is no evidence before me to indicate that a complaint was ever actually filed by the applicant arising out of the allegations set out in his September 19 and November 2, 2003 correspondence to the Commission. The complaint that ultimately was filed with the Commission on March 16, 2005 and forms the basis of the Application in this proceeding does not raise the allegations set out in the applicant’s September 19 and November 2, 2003 correspondence and bears a different Commission inquiry number (06122004DOBR-67EQYU) and file number (DOBR-67EQYU).
32In the materials filed with his Application, the applicant included a letter dated May 14, 2009 in which he seeks to clarify the issue regarding the amendment of his complaint. In this letter, the applicant states that his 2005 complaint was filed with the assistance of his legal representative at the time, who was doing the work pro bono and who the applicant states told him that he didn’t have any experience dealing with human rights issues but would try to do his best. The applicant states that he expressly asked his legal representative to file the complaint on the grounds of disability, ethnic origin, race and sex against a number of individuals, including the two personal respondents whom the applicant now seeks to have added, and that the applicant was particularly concerned that his legal representative raise the seniority issue, whereby the applicant alleges that he had been scheduled for less work than more junior employees because of his race and ethnic origin.
33This letter goes on to record that the applicant’s then legal representative advised him that the best thing to do was to file the complaint asking for his return to work on modified duties, and then to continue fighting for his rights from inside the respondent company. This is consistent with what was stated to me by the applicant at the hearing. The applicant accepted and acted upon this advice, which is why the complaint as filed was focused on the September 27, 2003 incident and the ensuing accommodation issue, and did not raise the allegations of discrimination, harassment and poisoned work environment which preceded the September 27, 2003 incident.
34There is no question in my view that the pre-September 27, 2003 allegations are beyond the scope of the subject-matter of the complaint as filed with the Commission. The complaint is framed only as raising the issue of discrimination because of disability, and not because of the applicant’s race, sex or ethnic origin. The complaint expressly states that it “is based on left shoulder and back injuries that are work related” and alleges that the respondents failed in their duty to accommodate the applicant’s injuries. The remedy sought is compensation for time missed since September 27, 2003 and a return to work on modified duties.
35The complaint does not raise any allegation of discrimination, harassment or poisoned work environment on the grounds of race, ethnic origin or sex, does not provide any details or particulars of such allegations as are set out in the applicant’s letters to the Commission from 2003, does not name the two individuals who are alleged to have been the primary sources of the discrimination, harassment and poisoned work environment, and does not seek any remedy connected to or arising out of any such allegations.
36The most that can be said is that in the opening paragraph of the complaint, there is an allegation that the applicant’s injuries “have been caused by continuous stress in the workplace and by work duties”. I am well aware that the applicant’s allegation arising out of the pre-September 27, 2003 issues is that, because he was subjected to discrimination, harassment and a poisoned work environment, he experienced stress which ultimately was the cause of his injuries and other health issues, which in turn was the cause of the September 27, 2003 incident when he collapsed after suffering a panic attack.
37However, unlike in proceedings before the Workplace Safety and Insurance Board (“WSIB”), the cause of a person’s disability is not a primary issue when determining whether that person’s rights under the Code have been violated. Whether a person’s disability was caused by a non-work related incident or a work-related incident or even by discrimination or harassment contrary to the Code makes no difference to the question of whether that person’s disability was appropriately accommodated in compliance with the Code.
38This is not to say that the cause of a person’s disability may not be relevant at the remedial stage, if caused by conduct in violation of the Code. For example, if it were proven that a person experienced a pattern of discrimination and harassment in violation of the Code that caused this person to develop a disabling condition which prevented her or him from working, then compensation could be awarded to such person arising out of the consequences of the infringement of her or his rights. However, any finding of a violation of the Code would be premised on the preceding pattern of discrimination and harassment, and not on the basis of any determination as to whether the person’s disabling condition was or was not caused by such discrimination and harassment.
39As a result, even if the very brief reference to the applicant’s injuries being attributable in part to “continuous stress in the workplace” is capable of being read to encompass the applicant’s allegation that this stress was caused by workplace discrimination and harassment, this is not sufficient to bring the underlying allegations of discrimination and harassment within the scope of the subject-matter of the complaint, in the absence of any reference to the details or particulars of the alleged discrimination and harassment which are the requisite foundation for asserting an infringement of the Code arising out of the pre-September 27, 2003 allegations.
40Having found that the pre-September 27, 2003 allegations are not within the subject-matter of the complaint as filed with the Commission, I will next consider whether to allow an amendment of the complaint to raise these allegations. As stated above, the Tribunal’s caselaw is that, for transitional applications, amendments will only be allowed in very limited circumstances and where to do so would be fair, just and expeditious to all parties. In this case, I do not find that it would be fair, just or expeditious to allow the applicant to amend his complaint to raise the pre-September 27, 2003 allegations. The applicant had the opportunity to raise these allegations at the time he originally filed his complaint in 2005, and on the advice of his legal representative deliberately chose not to do so. He further had the opportunity to seek amendment of his complaint by the Commission at any time from March 2005 to December 2008, but failed to do so. He expressly had raised these allegations with the Commission in 2003, but apparently chose not to pursue a complaint on the basis of these allegations at that time. I find that it would be inherently prejudicial to the respondents to allow the applicant to raise these allegations in May 2009, some five and a half years or more from the time they occurred. Accordingly, the applicant’s request to amend his complaint to raise the pre-September 27, 2003 allegations is denied.
41Finally, also in the “Amendment” document filed with his Application, the applicant sought to raise an allegation of discrimination because of sex and poisoned work environment arising out of some offensive messages that were alleged to have been chanted by employees of the respondent company towards the applicant and other picketers and that also were printed on pieces of paper left in employees’ lockers. This alleged incident occurred sometime in the summer of 2004, when the respondent hotel was being picketed. This allegation is not raised in the complaint as filed with the Commission nor is any allegation of discrimination because of sex or a poisoned work environment raised, and as a result I find that it is not within the subject-matter of the complaint. I further find that the applicant is not entitled to amend his complaint to raise this allegation, as he had the opportunity to raise it at the time his complaint was filed in 2005 and chose not to do so, and as he did not seek to amend his complaint at any time during the subsequent three and a half years that the Commission was dealing with his complaint.
42As a consequence of my determination that the harassment and poisoned work environment allegations are not within the scope of the subject-matter of the complaint and of my denial of the applicant’s request for an amendment, there is no basis upon which to grant the applicant’s request to add the two additional personal respondents. No allegations of any violation of the Code are made against these respondents in relation to the accommodation issue. Accordingly, the applicant’s request to add these individuals as personal respondents is denied.
Removal of Ms. Holle as personal respondent
43As stated above, the respondents have requested that Ms. Holle be removed as a personal respondent to this proceeding. The determination of this issue involves application of the well-established principles set out in this Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5.
44In this case, the respondent company also is alleged to be liable for the conduct at issue in this proceeding, and there is no issue as to the respondent company’s deemed or vicarious liability for any conduct by Ms. Holle as she were acting in the course of her responsibilities as an employee at all material times. There also, in my view, is no real issue as to the respondent company’s ability to respond to or remedy any alleged Code infringement that may be found.
45As with most cases involving a request for removal of personal respondents, the question comes down to whether there is any compelling reason to continue the proceeding as against the personal respondent. In my view, in the instant case, there is no compelling reason to continue this proceeding against Ms. Holle. In her conduct in this matter, Ms. Holle was acting in her capacity as the respondent company’s Human Resources Manager dealing with the potential accommodation and return to work of a disabled employee, and I find that her actions at issue in this case were more in the nature of coming out of her position and role as the respondent company’s human resources representative than being personally initiated or pursued by her.
46Accordingly, I hereby grant the respondents’ request to remove Ms. Holle as a personal respondent, and the title of proceeding has been amended accordingly.
The Accommodation Issue
47At the relevant time, the applicant was employed as a Banquet Server at the respondent hotel, where he had been working in this capacity since 1996.
48Ms. Holle was the Human Resources Manager at the respondent hotel at the relevant time.
a) September 27, 2003 to February 2004
49On September 27, 2003, there was an incident where the applicant collapsed at work as a result of a panic attack while carrying a tray of glasses. An ambulance was called, and the applicant was taken to the emergency department of a nearby hospital.
50Allegations are raised by the applicant as to the events on this day which precipitated the incident. As stated above, these events are not relevant to the accommodation issue before me. Whether or not the applicant was sick on this day and was not allowed to go home and whether or not the applicant was harassed by a co-worker on this day are not allegations of discrimination or harassment raised in the complaint or that fall within the subject-matter of the complaint. The accommodation issue as raised by the applicant in his complaint is focused on the applicant’s medical needs and restrictions following the September 27, 2003 incident and whether these needs or restrictions could have been accommodated by the respondent.
51The applicant also raises an issue about the respondent’s failure to report the September 27, 2003 incident to the WSIB and Ms. Holle’s statement that she was not aware that the applicant had injured his back in this incident. The matter of whether the September 27, 2003 incident should have been reported to the WSIB at an earlier time is an issue for the WSIB and is not an issue for me to determine under the Code.
52The applicant was off work following the September 27, 2003 incident. However, no medical certificate was provided to the employer until the letter from Dr. Quesnel dated October 27, 2003, which was faxed to the employer on October 30, 2003. This letter states that the applicant was being followed in the Psychiatry Outpatient Department at the Toronto Western Hospital and was being treated for adjustment disorder with anxious features. Dr. Quesnel suggests that the applicant take a two month leave from the workplace, which she described as exacerbating his symptoms. There was some dispute between the parties as to whether this two month period ran from the date of the incident, as interpreted by Ms. Holle, or from the date of the letter, as interpreted by the applicant. In my view, this dispute makes no difference to the outcome of this case.
53Prior to receiving Dr. Quesnel’s letter, Ms. Holle had sent a letter to the applicant dated September 28, 2003 informing him that a doctor’s note would be required in order for him to return to work. In this letter, Ms. Holle references the September 27, 2003 incident and a prior workplace incident, and expresses concern for the applicant’s safety and the safety of his co-workers.
54Ms. Holle met with the applicant on October 30, 2003 to review Dr. Quesnel’s letter. By letter dated October 31, 2003, Ms. Holle confirmed that the respondent company would honour the doctor’s recommendation, as it was important for the applicant to take care of his health condition.
55Ms. Holle’s evidence is that at this time, she understood that the applicant was off work primarily due to a mental health issue which she further understood to have been the cause of the panic attack experienced by the applicant on September 27, 2003 and which led to his collapse. Ms. Holle’s concern about the applicant being off work primarily due to a mental health issue is supported by Dr. Quesnel’s letter, which provides no other reason for the applicant’s absence from work or for his need to continue to be absent from work for a two month period.
56Given Dr. Quesnel’s letter and Ms. Holle’s understanding, Ms. Holle’s evidence is that, before the applicant would be permitted to return to work, he would need to provide a letter confirming his psychiatric fitness to return to work. In the specific circumstances of this case, given the content of Dr. Quesnel’s letter and the nature of the September 27, 2003 incident, I find that Ms. Holle’s expectation that the applicant provide a letter confirming his psychiatric fitness to return to work was reasonable.
57The applicant provided the respondent with a WSIB Functional Abilities Form completed by his family doctor, Dr. Kirsh, and dated November 7, 2003. This form identifies the applicant as having experienced lumbar muscle strain and sets out a number of physical restrictions, including no repetitive lifting, no lifting greater than 10 kilograms, and that the applicant was unable to carry a tray on his shoulder. Dr. Kirsh states on the form that the applicant could return to work on full-time hours with these restrictions, and required no rehabilitation or treatment.
58It was around this time, in early November 2003, that the respondent was contacted by the WSIB and informed that the applicant had filed a claim. This resulted in the respondent filing an Employer’s Report of Injury (Form 7) dated November 12, 2003.
59On November 28, 2003, the WSIB wrote to the applicant to confirm that entitlement for his claim had been accepted for low back impairment sustained at work on September 27, 2003. However, the applicant was informed that entitlement was for low back only, and that there was no entitlement for his panic attacks under this claim. The applicant was entitled to be paid loss of earning benefits from September 28, 2003. The letter also set out the responsibilities of the worker and the employer under the Workplace Safety and Insurance Act (“WSIA”).
60Under the WSIA, an employer has an obligation to attempt to identify and arrange suitable employment for an injured worker. In furtherance of this obligation, by letter dated December 1, 2003, Ms. Holle wrote to the applicant to offer him modified duties performing only those duties as specified by the WSIB’s standard restrictions for back injuries, commencing the following day, December 2, 2003.
61In the meantime, by letter dated November 15, 2003, the applicant had requested a leave of absence. The applicant’s evidence is that on an annual basis he travels to Nicaragua to visit with his mother for a month or two, and takes time off work for this purpose. By letter dated December 5, 2003, the respondent granted the applicant’s request for the period from December 14, 2003 to February 3, 2004. The letter states that the company had modified work available for the applicant during this time, so if he chose not to take his leave, the company could provide work to accommodate his back injury. This letter scheduled a meeting for February 4, 2004, at which time the applicant was to provide a doctor’s note giving him permission to return to work. In response to the applicant’s request for additional time to obtain a doctor’s note, the meeting was later re-scheduled to February 11, 2004.
62Ms. Holle’s evidence is that at this time, there were two issues of concern to the employer. One issue was the physical restrictions resulting from the applicant’s back injury, which she stated the respondent could have accommodated by providing modified work in accordance with Dr. Kirsh’s physical restrictions. However, Ms. Holle stated that there was also the psychiatric issue, based on Dr. Quesnel’s letter and the fact that the applicant had experienced a panic attack on September 27, 2003 leading to his collapse, for which the employer also would require medical clearance prior to permitting the applicant to return to work. Her evidence is that her December 1, 2003 letter did not change this ongoing requirement for psychiatric clearance prior to allowing the applicant to return to work.
63The applicant’s position regarding whether he could have returned to work on modified duties prior to his departure for Nicaragua was inconsistent. In response to my questioning, he took the position that he ought to have been permitted to return to work during this period based upon Dr. Kirsh’s physical restrictions provided sometime in early November 2003. However, on cross-examination, the applicant agreed that there was no issue regarding his potential return to work until after he returned from Nicaragua in February 2004.
64The applicant has been clear and consistent before this Tribunal that in his view there was no psychiatric issue, and that this issue has been seized upon by the respondent as an excuse to prevent his return to work. At the commencement of the second day of hearing, the applicant went to great lengths to explain his position to me. The problem, however, with the applicant’s position is that a psychiatric issue was raised by Dr. Quesnel with the employer in the very first letter describing the reason for his absence from work, and the employer understood that he had experienced a panic attack when he collapsed on September 27, 2003. Given these circumstances, I have found that it was reasonable for the employer to require the applicant to provide a medical note confirming his psychiatric fitness to return to work. As stated by Ms. Holle in her evidence, the note expected by the employer did not have to be complex or reveal the applicant’s diagnosis, treatment or other confidential information. The note simply needed to be written by someone with expertise in the area to confirm that the applicant was fit to return to work from a psychiatric perspective. No such medical note was provided by the applicant at any point prior to his departure for Nicaragua in December 2003.
65Accordingly, I find no failure to accommodate the applicant’s disabilities during the period from the time from the incident on September 27, 2003 until the end of the applicant’s leave of absence in February 2004.
b) February 2004 to May 2004
66While the applicant was absent on his leave of absence, a request was made for an extension to permit the applicant to obtain a doctor’s note confirming that he was well enough to return to work. As a result, the meeting to be held following the applicant’s return from his leave was postponed to February 11, 2004. The applicant was informed of this by letter dated January 30, 2004 and was told to bring the updated doctor’s note to the meeting on February 11, 2004.
67From the documentary evidence, it appears that this meeting in fact took place on February 16, 2004. For the purpose of this meeting, the applicant had obtained a further Functional Abilities Form from Dr. Kirsh dated February 16, 2004 which described restrictions arising out of the applicant’s back injury. Ms. Holle’s evidence is that, if the employer had only been dealing with a physical issue, the respondent would have been able to find modified work for the applicant within his restrictions as set out by Dr. Kirsh. However, the applicant still had not provided medical clearance in relation to the psychiatric issue, and the employer was not prepared to allow the applicant to return to work until this clearance had been provided. Ms. Holle’s evidence is that the need for psychiatric clearance was discussed with the applicant and his union representative at the February 16, 2004 meeting, at which time the applicant was told that the employer needed a medical opinion from his psychiatrist to ensure that he had properly recovered from his condition and was medically fit to return to work. This is supported by a letter from Ms. Holle to the applicant dated June 18, 2004.
68The matter then proceeded to mediation with a WSIB Return to Work Mediator on February 23, 2004. At this mediation, the parties reached an agreement whereby they agreed to defer the applicant’s return to work until such time as he was cleared to return to his pre-injury job with no back restrictions. The employer did not object to the applicant receiving loss of earnings benefits during this time, as the applicant had been found by the WSIB to have suffered from a pre-existing condition such that the employer was 100% relieved of the costs of his claim.
69In addition, the applicant agreed to provide the respondent with medical documentation from his treating psychiatrist clearing him to return to work from his non-compensable panic attacks which led to his compensable injury. While the agreement is not signed by the parties, the WSIB memo evidencing the agreement states that it was reviewed with and agreed to by all parties, and a copy of the agreement was sent to the parties.
70The applicant was in attendance at this mediation meeting with a union representative and a Spanish interpreter. His evidence is that he was forced by the union to enter into this agreement, which he did not want to do. The applicant’s allegations against the union about its involvement in the WSIB mediation later became the subject of his unfair representation application to the OLRB.
71Whether or not the applicant was forced by the union to enter into this mediation agreement, as he alleges, is not an issue before me. The issue before me is not the union’s conduct, but rather whether the respondent company, as the applicant’s employer, failed in its duty to accommodate his disabilities. In my view, the respondent should be entitled to rely upon a mediation agreement entered into by the applicant under the auspices of a WSIB Return to Work mediation. Further, there is no evidence before me that at any time prior to the applicant receiving clearance from the WSIB regarding his back restrictions effective June 8, 2004, the applicant expressed to the respondent that he was forced by the union to enter into the WSIB mediation agreement and did not in fact agree with its terms.
72Still further, and in any event, the WSIB mediation agreement simply confirmed the requirement already imposed on the applicant by his employer, which I have found to be reasonable in the circumstances, that he provide psychiatric clearance regarding his fitness to return to work. Until he provided this clearance, I find that it was reasonable for the respondent not to allow the applicant to return to modified work within his physical restrictions.
73In his evidence before me, the applicant states that he had been referred by Dr. Quesnel back to his family doctor for follow up as of December 2003, which is supported by Dr. Quesnel’s notes in evidence before me. The applicant further states that sometime after he returned from Nicaragua in February 2004, he attempted to obtain a letter from Dr. Quesnel but discovered that she was no longer working at the Psychiatric Outpatient Department at Toronto Western Hospital (“TWH”). The applicant initially testified that he discovered this after the mediation meeting on February 23, 2004, but then later changed his evidence to state that he discovered this prior to the mediation meeting. I asked the applicant why, if he already knew by the time of the mediation meeting that Dr. Quesnel was no longer available, he would agree to provide a letter from her regarding his psychiatric fitness to return to work that he knew he wouldn’t be able to obtain. The applicant did not have any satisfactory response. In my view it makes more sense, and I so find, that the applicant discovered that Dr. Quesnel had left TWH and so was no longer available to provide a letter sometime after the February 23, 2004 mediation meeting, as I find that he likely would have gone to TWH to request a letter further to the agreement reached at mediation.
74The applicant states that sometime between February 23, 2004 and June 2004, he informed Ms. Holle that Dr. Quesnel was no longer working at TWH and so could not provide the required clearance. The applicant was inconsistent in his evidence as to whether Ms. Holle’s response was that he was still required to obtain a letter from Dr. Quesnel or whether she said he was required to obtain a letter from someone in the TWH Psychiatric Outpatient Department. The applicant also alleges that sometime during this period he obtained and provided to Ms. Holle a copy of Dr. Quesnel’s clinical notes of their appointments (which will be addressed below). Ms. Holle does not recall being informed about Dr. Quesnel’s status during this time period, although she allows that she may have been, and states that she did not receive a copy of Dr. Quesnel’s clinical notes until they came enclosed with a letter sent on the applicant’s behalf on June 29, 2004.
75In my view, even if I were to accept the applicant’s evidence, this still does not provide a basis to find that the respondent failed in its obligation to accommodate his disabilities, as there is no evidence before me that the applicant at any time during this period provided the employer with what it required and what he had agreed to provide – namely a simple letter confirming his psychiatric fitness to return to work. Further, during this period, the applicant had agreed that he would not seek to return to work until he was cleared to return to his pre-injury job without back restrictions, and at no point during the period at least up until June 2004 is there any evidence that the applicant either had been cleared of his back restrictions or had expressed that he wanted to resile from the WSIB mediation agreement and wished to return to modified duties.
76Accordingly, I find that during the period from the applicant’s return from Nicaragua in February 2004 until the end of May 2004, the applicant’s right to accommodation for his disabilities was not violated by the respondent.
c) June 2004 to November 2004
77The applicant was sent by the WSIB for an assessment at the Regional Evaluation Centre at the Orthopaedic and Arthritic Hospital on April 27, 2004.
78By letter dated May 28, 2004, the WSIB advised the applicant of the results of this assessment. The applicant was advised that the assessment had provided a favourable prognosis for his low back condition, with no further medical investigation and only a further two to three weeks of formal physiotherapy treatment and discharge to home therapy. The applicant was advised that there were no medical restrictions, other than tolerance limitations for his low back for a period of four to six weeks, until June 8, 2004. Accordingly, the WSIB advised the applicant that it appeared that he would have fully recovered from his low back condition effective June 8, 2004 and would be fit to resume the essential duties of his pre-injury employment. The applicant was advised that his loss of earnings benefits would continue until June 8, 2004 and then be closed. The letter notes that the applicant had expressed concerns about this and had advised the WSIB that additional medical reporting would be submitted to the WSIB for reconsideration. This letter was copied to the respondent.
79The applicant then obtained a letter from Dr. Wong dated June 1, 2004. This letter states that the applicant had a permanent injury to his low back and needed permanent restrictions with no heavy lifting, no pushing and pulling, no repetitive bending, and standing, sitting and walking to an as tolerated level. This letter was provided to the respondent sometime in early June 2004.
80On June 18, 2004, the respondent sent a letter to the applicant expressing concern about the conflicting medical opinions regarding his back injury. In her evidence, Ms. Holle testified that on the one hand, the WSIB had stated that as of June 8, 2004, the applicant’s back injury had resolved and he was ready to resume the full duties of his position without restrictions, while on the other hand Dr. Wong was saying that the applicant had a permanent back injury and required significant permanent restrictions. The respondent’s letter states that they would be corresponding with the WSIB to try to resolve these conflicting medical opinions to determine whether the applicant had any work restrictions arising out of his back injury.
81The letter went on to state that, in the interim, before the applicant could resume any work whatsoever, the respondent required medical clearance from his psychiatrist stating that he was medically fit to return to work and whether he had any medical restrictions on the work he was able to do. The letter reviewed the previous occasions on which the respondent had requested this psychiatric clearance from the applicant, including at the meeting with the applicant on February 16, 2004. I note that this psychiatric clearance is also what the applicant had agreed to provide pursuant to the February 23, 2004 WSIB mediation agreement. The June 18, 2004 letter states that the respondent had not had any medical evidence from the applicant’s psychiatrist indicating that he had recovered and was medically fit to return to work, and that the respondent needed to be assured with a proper medical opinion that the applicant was medically fit and had recovered from the matters set out in his psychiatrist’s medical opinion dated October 27, 2003.
82In response, the respondent received a letter from the Ontario Coalition Against Poverty (“OCAP”) on the applicant’s behalf dated June 29, 2004. This letter attached the most recent clinical notes from Dr. Quesnel, and noted that psychiatric treatment of the applicant was discontinued and the applicant was referred for follow-up to his family physician, Dr. Kirsh. The letter states that the applicant had spoken with Dr. Kirsh regarding a further psychiatric assessment, and that Dr. Kirsh and Toronto Western Hospital both did not believe that the applicant was in further need of psychiatric assessment and as such would not refer him for treatment or assessment. The letter invited Ms. Holle to call Margaret at Toronto Western Hospital or Dr. Kirsh if she wished to receive confirmation of this.
83The clinical notes of Dr. Quesnel provided with this letter are from what appears to have been her last appointment with the applicant on December 8, 2003, shortly before he was due to leave for Nicaragua. These notes record that the applicant had had a bad week, experiencing anxious symptoms that included difficulty breathing, chest pain and difficulty sleeping. Dr. Quesnel records her impression that the applicant’s anxious symptoms had improved, despite this setback. Dr. Quesnel’s notes conclude with a plan, noting that the applicant was going to Nicaragua for two months and so would no longer be followed by the Psychiatric Outpatient Department at Toronto Western Hospital unless a new question arose and that follow-up would be with his family physician, Dr. Kirsh.
84Ms. Holle’s evidence before me was that she is not a doctor and so is not in a position to interpret a doctor’s clinical notes. She also testified that she was not prepared to accept the assertions made in the letter from OCAP regarding the views of Dr. Kirsh or Toronto Western Hospital, for two reasons. First, the letter was written by a paralegal and so did not provide the medical clearance required by the respondent. Second, the applicant was represented by a union and under the Labour Relations Act, it is the employer’s obligation to deal with the union rather than some other entity purporting to act on the employee’s behalf. This latter point was conveyed to the applicant and to OCAP by letters from Ms. Holle dated July 12 and 14, 2004 respectively. Further complicating matters at this time was the fact that OCAP was involved in organizing weekly protests outside the respondent hotel over workers’ rights issues.
85Ms. Holle also was not prepared to initiate telephone calls to Dr. Kirsh or to Toronto Western Hospital to obtain confirmation of the information set out in OCAP’s letter. This, in my view, was not unreasonable. Ms. Holle would have required the applicant’s authorization and consent in order to discuss medical issues, and particularly psychiatric issues, with either Dr. Kirsh or Toronto Western Hospital. More significantly, though, it was the applicant’s responsibility as an employee to provide his employer with the medical clearance required to return to work, which in this case included a requirement to provide psychiatric clearance in light of the letter from Dr. Quesnel dated October 27, 2003 and the nature of the incident on September 27, 2003.
86I agree with Ms. Holle that an employer should not be put in a position of trying to interpret a doctor’s clinical notes in order to decipher whether an employee is fit to return to work. I note further that Dr. Quesnel’s clinical notes do not say that the applicant’s psychiatric issues had resolved to the point where he was fit to return to work, nor do they speak to the matter of the applicant’s psychiatric fitness to return to work as of June 2004, given that her last appointment with the applicant was on December 8, 2003. At their highest, these notes simply state that the applicant’s anxious symptoms had improved.
87At this time, in my view, the applicant had several options available to him to satisfy his obligation to provide psychiatric clearance to return to work and the employer’s need for such clearance. He could have obtained a letter from his family physician, Dr. Kirsh, stating that the applicant had been referred by Dr. Quesnel back to Dr. Kirsh for follow up, that Dr. Quesnel was no longer available to provide clearance, that the applicant was not in need of further assessment or psychiatric treatment, and that from a psychiatric perspective he was fit to return to work. I am aware that the respondent had requested such clearance from the applicant’s treating psychiatrist; however, in the circumstances, it does not appear that the applicant was under the care of a treating psychiatrist at this time and if no such treatment was required as of June 2004, Dr. Kirsh simply could have stated this and given the applicant psychiatric clearance to return to work. However, no such letter was provided to the employer.
88The applicant could have obtained such a letter from Toronto Western Hospital. It appears from OCAP’s letter of June 29, 2004 that someone at Toronto Western Hospital had provided an opinion that the applicant was not in need of any further psychiatric treatment or assessment. If this opinion in fact had been provided to the applicant, Dr. Kirsh or OCAP and if confirmation of such opinion could have been provided verbally to the employer as stated in OCAP’s letter, then it would appear that a letter to this effect could have been provided.
89Failing either of these options, and if Dr. Kirsh himself was not prepared to write such a letter, Dr. Kirsh could have referred the applicant for a psychiatric assessment to obtain the required clearance, as he subsequently did when he referred the applicant to Dr. Caplan. Indeed, it appears that Dr. Caplan previously had seen the applicant for his psychiatric issues, and so would have been well-placed to provide the psychiatric clearance required to enable the applicant to return to work. I will address below the letter that ultimately was obtained from Dr. Caplan dated July 14, 2004. My point at this stage is that such psychiatric clearance was not provided as of June 2004 and in particular was not provided at this time either by the applicant directly or by virtue of OCAP’s June 29, 2004 letter.
90At the same time, and entirely apart from the issue of psychiatric clearance, the respondent was in possession of conflicting medical opinions regarding the applicant’s physical restrictions, if any. I am aware that in May 2004, the applicant asserted a WSIB claim for a left shoulder injury, which was denied by WSIB on the basis that the medical evidence did not support that this injury was work-related. However, as I have stated above, under the Code it does not matter whether or not an injury is work-related; if an employee has restrictions or limitations caused by a disability within the meaning of the Code, then the employer has a duty to accommodate up to the point of undue hardship.
91However, in this case, Dr. Wong’s June 1, 2004 letter expressly links the applicant’s restrictions to what he describes as a permanent back injury, and not at this time to any injury to the applicant’s shoulder, and states that the applicant has significant permanent restrictions. This flies in the face of the WSIB assessment by the Orthopaedic and Arthritic Hospital which found that the applicant’s back injury had resolved and that he could return to work with no restrictions as of June 8, 2004. Given the stark contradiction between these two medical opinions, in my view it is not reasonable to expect the respondent to simply accept Dr. Wong’s opinion and endeavour to return the applicant to work on the basis of the significant permanent restrictions set out by Dr. Wong without first seeking to resolve the conflict in the medical opinions, which is what the respondent sought to do by referring the applicant to an assessment by Work Able Centres Inc. (“Work Able”) which was conducted in November 2004. In any event, in my view, entirely apart from the conflict regarding the physical issues, it was reasonable for the respondent to require the applicant to provide psychiatric clearance to return to work, which he still had not done at this time.
92This then takes us to Dr. Caplan’s letter dated July 14, 2004. There is some dispute in the evidence as to when this letter was provided to the respondent. Ms. Holle’s evidence is that this letter was not provided until August 31, 2004, when the parties were at mediation in the context of the OLRB proceeding. The applicant’s evidence is that he provided this letter to Ms. Holle sometime shortly after it was prepared. In the view I take of this letter, it is not necessary for me to resolve this conflict, as I find that Dr. Caplan’s letter does not provide the psychiatric clearance required.
93Dr. Caplan is a psychiatrist who previously had treated the applicant prior to the September 27, 2003 incident. Dr. Caplan’s letter is addressed to Dr. Kirsh, who referred the applicant to Dr. Caplan. Dr. Caplan starts his letter by stating that he gathers that the applicant’s employer is requesting “some sort of psychiatric assessment” and that he is “not really very sure of the relevance of this”. The letter records that the applicant was seen at Toronto Western Hospital following the September 27, 2003 incident until early December 2003 when the applicant left for Nicaragua. Dr. Caplan states that after the applicant returned from Nicaragua, which would have been in February 2004, the applicant advised Dr. Caplan that “all his medical conditions have settled down”.
94The letter goes on to state that the applicant “claims to be feeling perfectly well and that the Toronto Western clinic and [Dr. Kirsh] have no idea why the employer is seeking a psychiatric assessment”. This, of course, is not correct. The need for psychiatric clearance for the applicant to return to work was a direct result of the letter provided by Dr. Quesnel dated October 27, 2003, which was the only medical note provided at that time to explain the applicant’s absence from work since the September 27, 2003 incident and which states that the applicant was being treated by a psychiatrist for adjustment disorder with anxious features and required two months off work. The need for psychiatric clearance was explained to the applicant at the meeting on February 16, 2004, was agreed to by the applicant in the WSIB mediation agreement on February 23, 2004 and was further confirmed by the respondent in its letter dated June 18, 2004. As a result, I find that the applicant was well aware of what was required by the employer and why it was required.
95Dr. Caplan concludes his letter with the following statement:
From my point of view, there is no evidence of an acute psychiatric disturbance, and if his employer wishes some sort of report, I think they are required to request it in writing with the individual’s written consent. Otherwise, under the current laws, we are certainly not required to supply any reports to them.
96I first will address the substance of Dr. Caplan’s opinion. Ms. Holle’s evidence is, once again, that she is not a medical doctor and so is not in a position to interpret what Dr. Caplan means by stating that “there is no evidence of acute psychiatric disturbance”. I agree. What was asked of the applicant and what it was his obligation to provide to his employer in order to return to work was a simple statement that his psychiatric issues had been resolved and that he was cleared to return to work from a psychiatric perspective. Saying that there is no evidence of “acute psychiatric disturbance” does not, in my view, accomplish what was required, as it is entirely unclear to me, as it was to Ms. Holle, whether the simple absence of an “acute psychiatric disturbance” means that a person is psychiatrically fit to return to work.
97In this regard, I note that the statement that “there is no evidence of an acute psychiatric disturbance” is the only actual opinion provided by Dr. Caplan. In the other parts of his letter, he merely repeats what he has been told by the applicant, without offering his opinion. For example, he states that following the applicant’s return from Nicaragua, the applicant “advised” him that all his medical conditions had settled down, and he later states that the applicant “claims” to be feeling perfectly well. This is not the same as Dr. Caplan as a psychiatrist providing his medical opinion that the applicant’s medical conditions, and particularly his psychiatric condition, had settled down to the point where he was able to return to work from a psychiatric perspective or that Dr. Caplan was of the medical opinion as a psychiatrist that the applicant was “perfectly well” from a psychiatric perspective and so could return to work.
98With regard to Dr. Caplan’s remaining comments, he is certainly correct that a medical doctor, and particularly a psychiatrist, is not able to provide a medical report directly to an employer without the patient’s consent. However, any doctor, including a psychiatrist, is fully capable of providing medical clearance, including psychiatric clearance, to return to work to the patient himself, who then is free to supply this information to the employer. This is all that was being requested by the respondent, and for the reasons stated above, Dr. Caplan’s letter was insufficient to accomplish this task.
99After receiving Dr. Caplan’s letter, the respondent wrote again to the applicant on September 13, 2004, stating that Dr. Caplan’s letter was not sufficient to provide the psychiatric medical clearance required to permit the applicant to return to work. For the reasons expressed above, I agree with this statement. As a result, the respondent advised the applicant that it was requiring him to undergo a third party medical assessment by Work Able to assess his psychiatric medical clearance to return to work and his physical ability to perform his regular work duties and whether modified duties were required. The applicant was to advise the respondent of his decision whether he agreed to undergo this assessment. There is no dispute that the applicant agreed to attend the Work Able assessment, which was conducted in November 2004.
100Before me, the applicant testified that his doctors were upset with him for agreeing to attend this assessment, and felt that they should have been consulted in the selection of the assessor. Whether or not this is the case, I find that in the circumstances, it was reasonable for the employer to require the applicant to attend a third party assessment on both the physical and psychiatric issues, given the applicant’s failure to provide psychiatric clearance to return to work which had been requested and agreed upon since February 2004 and given the starkly conflicting medical opinions provided by the WSIB and Dr. Wong.
101I further find that the applicant was given an opportunity by the respondent to consider whether he agreed to attend the Work Able assessment, which could have included consultation with his doctors and a request for their input into the selection of the assessor. Having chosen not to do so at the time and having agreed to attend the assessment, in my view it is not open to the applicant after the fact to say that the respondent should have consulted with his doctors in the selection of the assessor.
102Accordingly, I find that during the period from June 2004 until the Work Able assessment in November 2004, the applicant’s right to accommodation for his disabilities was not violated by the respondent. In particular, I find that it was reasonable for the respondent to require the applicant to provide psychiatric clearance confirming his ability to resume work from a psychiatric perspective, and that the clinical notes of Dr. Quesnel and Dr. Caplan’s letter of July 14, 2004 were insufficient to provide this clearance. I further find that, given the applicant’s failure to provide the required psychiatric clearance and the conflict in the medical opinions regarding his physical abilities, it was reasonable for the respondent to require the applicant to attend an assessment with Work Able on both of these issues.
d) November 2004 to March 2005
103There were three components to the assessment conducted by Work Able: an independent psychological assessment; a functional abilities evaluation; and an independent orthopaedic assessment. All three assessments were conducted in November 2004, with the report released by Work Able on November 24, 2004.
104The psychological assessment concluded that the applicant was not disabled from work from a psychological perspective. The assessor concluded that the applicant had made a good recovery from his previously diagnosed psychological conditions. With regard to the applicant’s panic attacks, the assessor stated that panic attacks in and of themselves are not generally considered to be a disabling psychological condition, and the type of risk posed by such attacks in the applicant’s circumstances does not constitute a psychological disability. This assessment was accepted by the respondent as providing the necessary psychological clearance for the applicant to return to work, and from the respondent’s perspective, resolved this long-outstanding issue.
105I am aware that the applicant contests the accuracy of certain information recorded in the psychological assessment as having been provided to him by the employer, and in particular an event which is alleged to have occurred on December 4, 2003 among others. In this regard, there is no allegation raised in the complaint that the providing of this information to Work Able was in and of itself a violation of the applicant’s rights under the Code. Rather, as I have reviewed in detail above, the allegation raised by the applicant’s complaint is that his needs arising out of his disabilities were not appropriately accommodated by the respondent following the September 27, 2003 incident. Up until the time of the Work Able assessment, I have found that it was reasonable for the respondent to request psychiatric clearance for the applicant to return to work and that he had failed to do so. As a result of the Work Able assessment, this issue was resolved and the need for psychiatric clearance to return to work was no longer an impediment to the applicant. As a result, the information provided by the employer to Work Able, whether accurate or not, did not interfere with the final assessment that the applicant was able to return to work from a psychological perspective.
106The orthopaedic assessment was conducted by Dr. Hunter, an orthopaedic surgeon. Dr. Hunter examined the applicant, and concluded that there were no significant medical conditions which prevented or precluded the applicant from returning to work on a regular basis as a full-time banquet waiter. Dr. Hunter did not identify any restrictions that would be required for the applicant to return to work, and provided his opinion that there were no specific tasks, work duties or physical activities that were contraindicated for the applicant for medical reasons. I note that Dr. Hunter’s conclusion is in line with the opinion provided to the WSIB in May 2004 by the Regional Evaluation Centre at the Orthopaedic and Arthritic Hospital.
107In his report, Dr. Hunter noted that there was considerable exaggeration of disability by the applicant during the course of the examination. For example, when the applicant was being formally examined, he had marked reduction in the range of movement of his cervical spine in all directions with reported pain. However, when not being formally examined, Dr. Hunter noted that the applicant was able to move his neck in all directions without any indication of pain.
108A functional abilities evaluation (“FAE”) was also conducted to determine the applicant’s ability to meet the functional requirements of his pre-disability occupation as a Banquet Server. As part of the FAE, the applicant was assigned a number of tasks to determine whether he could meet the physical demands of the job, and also was assigned a number of simulated work duties.
109As part of an FAE, the assessors use a number of monitoring procedures to assess the reliability of the results. These procedures include: comparison of consistency during test / retest and known / unknown test situations; monitoring of signs of physiological response to activity; monitoring for signs of biomechanical adaptations in response to activity; comparison of consistency between subjective report of abilities and objective observation of abilities; and the Jamar Maximum Voluntary Effort (“MVE”) testing.
110The Work Able assessors reported that the results of these monitoring procedures in combination with clinical observations suggested inconsistency as well as limited engagement in the applicant’s task performance during the FAE. It was reported that inconsistencies were noted between testing and retesting situations throughout the evaluation. For example, it was reported that the applicant discontinued a formal waist to shoulder lifting task after demonstrating 10 lb / 4.5 kg secondary to reported left shoulder pain. However, he demonstrated the ability to lift 18 lb / 8.2 kg during work simulation activities. This was considered to be an inconsistency. In addition, the applicant demonstrated the ability to unilaterally carry 25 lb / 11.4 kg in his right arm. However, he discontinued formal bilateral carrying after only 15 lb / 6.8 kg. The applicant discontinued both tasks secondary to reported right shoulder pain. The assessors note that the discrepancy in demonstrated strength levels was considered to be an inconsistency.
111Still further, the assessors reported that the applicant stopped pushing / pulling a 4-wheel cart secondary to reported left shoulder pain. However, during the task, the applicant was noted to take his right hand off the cart to rub his left shoulder, thereby employing a left handed unilateral pushing technique with no deterioration in demonstrated ability. As well, the assessors reported that retesting with an alternate push / pull task was discontinued after just 8 lb / 3.6 kg of horizontal force secondary to reported right shoulder pain, as compared to the applicant’s earlier demonstrated ability of 29 lb / 13.2 kg of horizontal force. Once again, the assessors note that these were considered to be inconsistencies.
112Still further, the assessors reported that the results of the Jamar MVE testing indicated that the applicant put forth an inconsistent and less than full level of effort during that task. This testing involves a sequence of grip strength tasks performed in rapid succession while alternating between both hands.
113The assessors reported that the applicant was made aware of the lack of effort regarding his performance during the Jamar MVE testing and was re-oriented to the purpose of the evaluation and encouraged to put forth his best effort before testing was re-initiated. However, the assessors reported that ongoing monitoring of the applicant’s performance, in combination with clinical observations, continued to suggest inconsistency and less than full engagement in task performance.
114While the assessors did report the results of their testing in relation to the various physical demands of the job, the applicant either did not demonstrate an ability to meet these physical demands and/or inconsistencies were reported in relation to most of the job requirements. The applicant was unable to meet the essential physical demands of the Banquet Server position in the following areas: lifting – ground to waist requires occasional medium strength level (49 lb / 22 kg) while the applicant was unable to complete any ground to waist lifting; lifting – waist to shoulder requires occasional medium strength level (49 lb / 22 kg) while the applicant was only able to demonstrate sedentary strength level (18 lb / 8.2 kg); lifting – above shoulder requires occasional medium strength level (49 lb / 22 kg) while the applicant was only able to demonstrate sedentary strength level (10 lb / 4.5 kg); carrying requires occasional medium strength level (49 lb / 22 kg) while the applicant was only able to demonstrate light strength level (less than 25 lb / 11.4 kg); frequent walking is required while the applicant was only able to demonstrate occasional slow walking before discontinuing the task due to reported low back pain; frequent stooping is required while the applicant had to discontinue stooping after a minimal duration secondary to reported low back and right shoulder pain.
115As indicated above, the assessors also noted inconsistencies in some of these areas, including lifting – waist to shoulder, pushing / pulling, and carrying.
116The FAE also included a work simulation assessment, during which the applicant was assigned three simulated work duties that form part of the essential duties of the Banquet Server position. The applicant was unable to demonstrate an ability to perform any of these tasks. One task involved picking up a stack of dishes, carrying them a short distance, and spreading them around a table, which is a task regularly performed by a Banquet Server. The applicant discontinued the lifting and carrying tasks secondary to reported pain in his left shoulder. Another task involved clearing tables, by picking up dishes and cutlery from the table, using a carrying tray to pick up glasses and carrying them a short distance, which again is a task regularly performed by a Banquet Server. The applicant discontinued the lifting and carrying tasks secondary to reported left shoulder pain. The third task involved setting up a buffet, by pushing a 4-wheel cart, lifting off a serving dish, carrying it a short distance and then repeating. This again is a task regularly performed by a Banquet Server. The applicant discontinued the lifting and carrying tasks secondary to reported pain starting in his shoulders bilaterally and spreading into his mid-back, and he discontinued the pushing / pulling task secondary to reported pain in his shoulders bilaterally.
117The assessors’ opinion as a result of the FAE was expressed as being that, as the applicant’s performance during the FAE was inconsistent and less than a full level of engagement was noted, the evaluation results may not be a true representation of the applicant’s current functional abilities / tolerances.
118On December 10, 2004, Ms. Holle wrote to the applicant’s union representative to advise that the company had received the Work Able report, but that there were some concerns and inconsistencies that needed further clarification. Ms. Holle stated that once the employer had had an opportunity to review the report in detail, a meeting would be arranged with the applicant and the union to review the issues and discuss his return to work. In the meantime, Ms. Holle noted that the applicant was requesting a leave of absence to return home to Nicaragua. This request was granted by the respondent company for the period from December 9, 2004 to March 9, 2005. A meeting with the applicant and the union was arranged to follow his return.
119The applicant’s request for a three month leave of absence shortly following the Work Able assessment in my view means that it is unrealistic to expect that the applicant could have resumed work at any time prior to the end of his leave in March 2005, even absent the concerns and inconsistencies noted in the Work Able report. The Work Able report is dated November 24, 2004. Given its conclusions, particularly Dr. Hunter’s opinion that contradicted the June 1, 2004 opinion of Dr. Wong and the concerns and inconsistencies noted in the FAE report, it was not unreasonable in my view for the respondent to require at least some period of time to review the report before deciding how best to proceed. As the applicant commenced his leave approximately two weeks after the date of the report, I do not consider this to be an unreasonable amount of time for the respondent to take, following which the applicant was not available for work until March 2005.
120Accordingly, I find that during the period from November 2004 until the end of the applicant’s leave in March 2005, the applicant’s right to accommodation for his disabilities was not violated by the respondent.
e) March 2005 to September 2005
121Following the end of the applicant’s leave, a meeting was held with the applicant and the union on March 15, 2004. At this meeting, Ms. Holle states that she expressed her disappointment that the findings were inconclusive because the applicant did not fully participate in the assessment. At this point, Ms. Holle states that they were still at a standstill, because the company was still looking for reliable medical information regarding the applicant’s physical abilities. She states that the company was prepared to give the applicant one last chance to provide the information required, by attending and participating in a further FAE assessment.
122Following this meeting, Ms. Holle wrote to the applicant by letter dated March 28, 2005 to review the history of what had occurred and the findings of the Work Able assessment. In this letter, Ms. Holle expresses the company’s extreme disappointment with his lack of cooperation, effort and participation in the Work Able assessment, and states that given the inconsistencies in the medical reports as well as the applicant’s behaviour and lack of cooperation, the company was unable to return him to work. Nonetheless, the respondent offered the applicant one final opportunity to participate in the Work Able assessment, and stated that the company would not return him to his duties until it received clear medical documentation which identified his restrictions, if any.
123At the hearing, I explored with Ms. Holle whether the company considered allowing the applicant to return to work on the basis of the restrictions as noted in the Work Able assessment while the conflict in the medical evidence was being explored and resolved. Even if the applicant had not been fully participating in the FAE, he at least would have been able to safely perform tasks within his restrictions, as the applicant’s lack of effort in the FAE would have over-stated his restrictions. Ms. Holle’s evidence was that the company was not prepared to consider that, as the medical results remained inconclusive.
124Having now had an opportunity to consider the matter further, I am of the view that in the specific circumstances of this case, the respondent was not required to allow the applicant to return to work on the basis of inconsistent and inconclusive medical results. I say this in light of the stark conflict between the assessment received by the WSIB in May 2004 which was in line with the opinion of Dr. Hunter in November 2004 that the applicant could return to full duties with no restrictions, and Dr. Wong’s June 1, 2004 opinion that the applicant had a permanent back injury and significant permanent restrictions. This is not a minor discrepancy in medical opinion, but about as stark a conflict as could be imagined. This conflict is further compounded by Work Able’s report of the applicant’s exaggeration of his limitations in his examination by Dr. Hunter and his lack of consistent effort in the FAE. In light of these circumstances, I find that the respondent was not required simply to accept the medical opinion of the applicant’s doctor and return him to work on the basis of those permanent restrictions or alternatively accept the limitations as set out in the FAE report on the basis of inconsistent effort by the applicant. In my view, in these specific circumstances, I find that it was reasonable for the respondent to seek to resolve these conflicts in the medical evidence before allowing the applicant to return to work.
125I am aware from materials filed by the applicant subsequent to the hearing in this matter, that he takes issue with questions I asked during the hearing seeking to ascertain what work duties he could have performed within the limitations described in the FAE. The applicant objects to reliance being placed on the Work Able report, because he describes it as an “outdated” report which has been “refuted” by Dr. Wong’s subsequent medical report dated June 6, 2005. I will note several things in response. First, Dr. Wong’s June 6, 2005 report was not provided to the respondent until it was sent to Ms. Holle by the union on July 27, 2005. As a result, as of the time of the applicant’s return from leave in March 2005, the Work Able report was the most current report available regarding the applicant’s physical abilities and had not been refuted by anyone.
126Second, I do not agree that Dr. Wong’s June 6, 2005 report refutes the Work Able assessment. Dr. Wong certainly expresses a difference of opinion from Dr. Hunter, and references the limitations inherent in a physician conducting a one-time examination rather than being able to monitor changes in a patient’s condition over time. However, Dr. Wong’s comments about the FAE in no way refute its results. He merely states that an FAE is highly dependent upon the cooperation of the patient, and there may be poor cooperation if there is no trust in the tester. Dr. Wong notes that there were several limitations with respect to the applicant’s functional ability at the time of the FAE because of the significant mistrust between the applicant and his employer, which caused the applicant to view the FAE assessor as “unfriendly”. While Dr. Wong may accurately have pointed to one of the reasons behind the applicant’s lack of effort and inconsistent results, he explains rather than refutes the FAE assessment. Further, as part of the duty to accommodate, it is the employee’s responsibility to cooperate with the employer in reasonable efforts to provide accommodation, which would include cooperating with an FAE assessment. The applicant’s “mistrust” or perception of Work Able as “unfriendly” did not relieve him of that obligation.
127Dr. Wong further opines that an FAE is not essential and that he has enough confidence in the restrictions he has outlined in his letter without an FAE. While Dr. Wong may have confidence in his own opinion, it clearly is at odds with the opinion provided to the WSIB and that of Dr. Hunter. The question in this context is not whether an FAE is “essential”, but whether requiring the applicant to submit to an FAE before allowing him to return to work in these circumstances is reasonable and not in violation of the Code. I already have found in the specific circumstances of this case that it was reasonable to require the applicant to submit to the Work Able assessment, including the FAE, prior to allowing him to return to work and that this was not in violation of the Code.
128Third, while the applicant may not appreciate this, I was actually trying to assist him in exploring whether he could have been returned to work on the basis of the results of the Work Able assessment, given that he was self-represented at the hearing and was unassisted by legal counsel. Whether on the basis of Dr. Wong’s restrictions as set out in his June 1, 2004 letter or on the basis of the results of the FAE from November 2004, it was clear that the applicant was incapable of performing the essential duties of the Banquet Server position. Further, despite Dr. Hunter’s opinion, Dr. Wong had described these restrictions as being permanent. As a result, taking the applicant’s case at its very highest, I was prepared to consider whether in March 2005 the employer may have been required to return him to work on the basis of these permanent restrictions. While I was aware from the evidence that the applicant was incapable of performing the essential duties of the Banquet Server position, I also was aware that in certain circumstances labour arbitrators have required employees to be accommodated by being allowed to perform “bundles” of duties from within their regular job description, and I wanted to explore at the hearing whether this would have been possible at the time in March 2005.
129To this end, I explored with the applicant what duties of the Banquet Server position he felt that he could have performed at the time within his restrictions, and this issue was further explored by respondent counsel on cross-examination. The applicant’s evidence in response to my questions was that at this time, within his restrictions he could have performed the following duties: folding napkins; cleaning cutlery; helping the other waiters to set the table, although he agreed that he would not be able to lift a stack of plates; serving water at banquets and tea at Chinese functions, although he later agreed that he was not sure he would be able to carry a full pitcher of water or pot of tea; serving the plates of food one by one in plated service (which means that the meals are already on the plates when they come out of the kitchen), although he would not be able to carry the tray of plates from the kitchen to the banquet room and he would not be able to do French service (where the plates are in front of the guests and the server fills the plates from a tray of food); and making the buffet display look nice.
130On cross-examination, in addition to acknowledging that he was not sure he could carry a full pitcher of water or pot of tea, the applicant stated that there also was bending involved in pouring water or tea and he was not sure whether he would have been able to do that either. He also stated that he didn’t know whether he would be able to do plated service, even by just putting out the plates one by one. It was then noted by respondent counsel was that one of his restrictions was no repetitive standing or walking, to which the applicant responded that maybe he could put out two or three plates or pour some tea or water and then when he got tired, he could go do something else.
131Prior to hearing final argument, I asked the respondent to address the legal issue regarding the scope of the duty to accommodate and the extent to which it includes a requirement to “bundle” tasks that an injured employee can perform into a permanent position. The respondent was able to provide me with some caselaw on this issue, but requested time to prepare and file written submissions. I asked respondent counsel, as an officer of the court and in light of the fact that the applicant is self-represented, to provide me with all relevant caselaw on this issue, whether it assisted his clients or not. He agreed to do so. I afforded the respondent four weeks to file these submissions and I gave the applicant an opportunity to file submissions in reply.
132I agree with the respondent that, currently, the leading case with respect to the duty to accommodate is the decision of the Supreme Court of Canada in Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d'Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 ("Hydro-Quebec"). In terms of the goal and purpose of accommodation, the Court stated (at para. 14):
... the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.
133The Court continued at paragraph 16:
The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work. (emphasis added)
134Prior to the Hydro-Quebec decision, there were divergent lines of arbitral authority as to whether an employer was required to “bundle” duties together in order essentially to create a new job for a disabled employee who was unable to perform the essential duties of his pre-disability position. Since Hydro-Quebec, it appears that the applicable legal principles in this area have been clarified somewhat.
135In ADM Milling Co. v. United Food and Commercial Workers International Union, Local 175 (Bennett Grievance) (2008), 177 L.A.C. (4th) 314, Arbitrator Slotnick (who also is a member of this Tribunal) stated, at paragraph 55:
In this respect, the court's statement that employer "does not have a duty to change working conditions in a fundamental way" may signal that "rebundling" proposals that involve significant restructuring of jobs will more often be found to cause undue hardship.
136Arbitrator Slotnick addressed the bundling of duties specifically at paragraph 54. In this case, the union had proposed bundling a number of tasks that would fit the grievor's restrictions and would not result in any other employees losing or being bumped out of their positions. Arbitrator Slotnick concluded that, ultimately, this was highly impractical. He stated, at paragraph 64:
There is little point in giving [the grievor] a series of tasks that are already being performed by other employees as part of their own jobs; that would be precisely the type of solution - creating a job that is of little or no value to the company that many of the cases cited above say is not covered by the duty to accommodate. I have no hesitation in finding that the company has established that [the grievor] cannot be accommodated in this fashion without undue hardship.
137The second case which considered the bundling of tasks post Hydro-Quebec is Gables Lodge Ltd. v. Canadian Union of Public Employees, Local 1315 (M. Grievance) (2009),187 L.A.C. (4th) 286. In this case, Arbitrator Kydd reviewed relevant passages from the Hydro-Quebec case and stated, at paragraph 51:
In the above passages the Court affirms that the purpose of the duty to accommodate is to ensure that an employee "who is able to work can do so". Accommodation requires the removal of barriers, up to the point of undue hardship, that stand in the way of the employee doing his or her work. The statement that "the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration", affirms that any requirement to accommodate must be linked to enabling an employee to perform his or her work.
138Arbitrator Kydd continued at paragraph 53 indicating that, in his view, the Hydro-Quebec case precluded the adoption of the line of arbitral authority suggesting that an employer is not required to “bundle” or take various tasks from existing positions and create a new position. He went on to state:
Hydro-Quebec to the contrary, indicates that an accommodation should be made if circumstances permitted various tasks to be reassembled and given to a disabled worker, without undue hardship to the employer which would allow the employee to perform a useful and productive job. On the other hand the affirmation in Hydro-Quebec, that the duty to accommodate must be compatible with the rule that "employees must do their work" has to mean that "the threshold of undue hardship is crossed if the employer is required to maintain a handicapped employee in a position that is not of itself a useful and productive job in the context of the employer's operation" . . .
139In reviewing Hydro-Quebec and the arbitral authority referred to me by the respondent, I agree with and adopt the finding of Arbitrator Kydd that the duty to accommodate may, in appropriate circumstances, require an employer to “bundle” or take various tasks from existing positions and in essence create a new position for a disabled employee, unless to do so would create undue hardship for the employer. I also agree with Arbitrator Kydd that ultimately an employee must be able to perform a useful and productive job in the context of the employer’s operation.
140The respondent also submits that a distinction needs to be drawn between affording an employee modified duties on a temporary basis where an employee’s disability or injury has caused short-term restrictions or limitations, as opposed to the situation where the medical evidence indicates that an employee has permanent restrictions which prevent him or her from performing the essential duties of the pre-disability job. I agree. When providing accommodation to an employee with temporary or time-limited restrictions or limitations, the threshold for finding undue hardship is higher and an employer may be required, on a temporary basis, to provide modified duties which otherwise would not be sustainable on a permanent basis.
141However, in the instant case, the medical evidence submitted by the applicant in June 2004 regarding his physical abilities, which remained unchanged as of the applicant’s return from leave in March 2005, was that his back injury was permanent and hence that his restrictions were permanent. As a result, the applicant no longer was looking for temporary or time-limited accommodation at work through modified duties. Rather, what the applicant, on his medical evidence, required at this time was permanent accommodation through the creation of a permanent new position cobbled together from the limited number of duties within his pre-disability job that he remained able to perform. The question in this case is whether the respondent was required by the duty to accommodate to provide the applicant with a position of this nature.
142The applicant worked as a Banquet Server at the respondent hotel. The duties of a Banquet Server are comprised of three main parts: setting up for the function; performing duties during the function; and cleaning up. With regard to set-up, the Banquet Servers’ duties are to load the necessary items for the function (plates, utensils, glasses etc.) onto a large cart and then take it to the banquet room. The applicant’s restrictions would prevent him from doing this. Once at the banquet room, the cart would then be unloaded, with the required items being taken to the individual tables. Once again, the applicant’s restrictions would prevent him from doing this. The applicant’s evidence is that, once the required items had been taken from the cart to the individual tables, he may be able to do the individual place settings. The applicant’s evidence also is that he would be able to fold napkins in preparation for a function, although the medical evidence is unclear about this and it is not clear how long the applicant would be able to perform this task on a sustained basis.
143The Banquet Server’s duties during the function depend upon what kind of function it is: plated service, French service or buffet. In plated service, the Banquet Servers come into the function with large trays of plates with the meals already served on them. These trays are then placed on a side stand, and the individual plates are taken to each table. The applicant’s restrictions prevent him from carrying these trays into the banquet room. His evidence is that, once the trays were taken into the room and placed on the side stand, he could assist in delivering the individual plates to the tables, although he was not sure about this and testified that he may need to rest after serving three or four plates. French service requires the server to take to each table large trays of the individual food items and place them on each attendee’s plate. The applicant’s restrictions would prevent him from doing this. However, from the physical demands analysis for the Banquet Server position prepared in 1999, it appears that there is very little demand for French service meals at the respondent hotel.
144For buffet functions, the Banquet Servers would load the chafing dishes and food items onto a large cart and take these to the banquet room, and then transfer them to the buffet table. The applicant’s restrictions would prevent him from doing this. The applicant’s evidence was that he would be able to make the buffet display look nice. During any type of function, the Banquet Servers are required to provide water, coffee or tea, and to clear dirty dishes, utensils and other material from the tables. The applicant’s evidence was that, while he didn’t think he could carry a full pot of coffee or tea or jug of water, he might be able to carry a half-filled pot or jug and pour for the attendees, although he wasn’t certain of this and acknowledged that repetitive bending was involved in pouring drinks which would be against his restrictions. The applicant’s restrictions would prevent him from clearing tables, except perhaps by carrying one or two plates at a time.
145After the function is over, the Banquet Servers are required to do clean-up, which involves removing all dishes and food from the banquet area. This involves taking all of these items from the tables in the banquet room and loading them onto a large cart, and then returning them to the kitchen or storage area. The applicant’s restrictions would prevent him from performing these duties, with the exception perhaps of being able to remove plates one or two at a time from the tables and put them on the cart.
146When viewed in this context, in order to provide the applicant with a job that was within his restrictions, the respondent hotel would have been required to create essentially a permanent Assistant Banquet Server job, in which the applicant would perform a fraction of the full duties of a regular Banquet Server. It does not appear to me from the evidence that the creation of such a position would relieve the respondent hotel from having the same number of regular Banquet Servers required for a function, in addition to the applicant in an assistant role, as the respondent hotel would still need the same number of regular Banquet Servers for example to bring in the trays for a plated service function or to set up the buffet or to do the bulk of the clean-up and set-up. As a result, in my view, what requiring the respondent to provide the applicant with a permanent job comprised of the limited number of duties within his restrictions would entail is to require the respondent to add the applicant in an assistant role to the full complement of regular Banquet Servers they already required. This in my view would not constitute the applicant performing a useful or productive job in the context of the respondent hotel’s operation. Accordingly, I find that the duty to accommodate under the Code did not require the respondent to accommodate the applicant in this manner.
147The applicant also raised at the hearing the prospect that he could have been assigned a job in another department, and he referenced another banquet department employee who had been accommodated in this manner previously. The evidence indicates that accommodation for this other banquet department employee was on a temporary basis, as opposed to on a permanent basis. The respondent’s evidence is that it had no alternative positions available within the applicant’s abilities and restrictions. There is no evidence to contradict this. In the absence of an available position within the applicant’s abilities and restrictions, I do not find any violation of the duty to accommodate by the respondent.
148The applicant’s physical abilities did not improve during the period from March to September 2005, and in fact the evidence indicates that his condition worsened. The union obtained a letter from the applicant’s doctor, Dr. Wong, dated June 6, 2005, which reviewed the applicant’s history regarding his physical limitations. Since Dr. Wong’s June 1, 2004 letter setting out the applicant’s permanent restrictions resulting from his back injury, Dr. Wong noted that the applicant had experienced injuries both to his left and right shoulders, which resulted in even further restrictions to the applicant’s physical abilities. Dr. Wong states that in addition to the permanent restrictions for the applicant’s back injury, there were permanent restrictions for his shoulder injuries, with no heavy pushing, pulling or lifting and no overhead work. Dr. Wong states that the applicant would have difficulty with repetitive movement, such as folding napkins, lifting or carrying. Dr. Wong expressly states, “I would not say he is fit to work as a banquet server”. With regard to the napkin folding issue, I note that Dr. Wong subsequently provided a handwritten note dated July 25, 2005 stating that the applicant could try doing the work of napkin folder, assuming he could work at his own pace and rest as needed.
149In late June 2005, the applicant attended for a psycho-vocational assessment at Goodwill’s Career Centre, which concluded that the applicant was “totally unemployable at this time” and should be assisted in applying for and receiving CPP disability benefits and Ontario Disability Support Plan (ODSP) income benefits. The psycho-vocational assessment report was released on July 8, 2005.
150In the meantime, in July and August 2005, the union corresponded with the respondent regarding the applicant’s potential return to work. After receiving the Goodwill Career Centre psycho-vocational report, the respondent wrote to the union by letter dated September 9, 2005, to state that in light of this report, it was clear that the applicant was not ready to return to any kind of employment. The union responded by letter dated September 19, 2005 to confirm that it agreed that the applicant was not at that time capable of returning to any work.
151Further, by letter dated August 31, 2005, the applicant wrote to his union to provide a copy of the psycho-vocational report. In this letter, the applicant referenced the report’s conclusion that he was unable to return to work and was totally unemployable at that time, and confirmed that he had applied for ODSP benefits and would be applying for CPP disability benefits. The applicant in this letter stated that it was not possible for him to return to work and that he was experiencing deteriorating health conditions, and he sought the union’s assistance in bringing closure to all outstanding matters.
152I already have found that, based upon the permanent restrictions provided for the applicant by Dr. Wong in his June 1, 2004 letter, the respondent did not violate its obligation to accommodate the applicant’s needs as March 2005 within the requirements of the Code. Given that the applicant’s restrictions became more severe following that time, I further find that the respondent did not violate its obligation to accommodate his needs up to the time of the psycho-vocational assessment in early July 2005. I further find that as of early July 2005, and based on the results of the psycho-vocational report and the applicant’s own statements, the applicant was totally unemployable.
153I am aware from materials filed by the applicant subsequent to the hearing that he takes the position that despite the finding of the psycho-vocational report, his own statements at the time, and the fact that he qualified for ODSP and CPP disability benefits, he nonetheless would have been able to work at some point subsequent to July 2005. I do not accept this assertion for a number of reasons. First, it is not supported by any evidence before me, and is contradicted by other evidence before me, including the psycho-vocational report, his own statements at the time, and the fact that he qualified for ODSP and CPP disability benefits. Second, there is no evidence before me that at any time subsequent to the exchange of correspondence in September 2005 between the employer and the union, the applicant provided the respondent with medical information indicating that he was capable of returning to work at all, let alone in a manner that could be accommodated within the scope of the respondent’s obligations under the Code. Finally, even if at some time subsequent to July 2005 the applicant became capable of returning to work, any such issue is beyond the scope of the subject-matter of the complaint, which was filed in March 2005.
154Accordingly, for all of the foregoing reasons, I find that during the period from March 2005 to September 2005, the applicant’s right to accommodation for his disabilities under the Code was not violated by the respondent.
Post-hearing materials filed by the applicant
155As indicated above, at the conclusion of the hearing, I invited written submissions from the respondent on the narrow legal issue as to whether the duty to accommodate under the Code requires the bundling of job duties to create essentially a new position, and afforded the applicant with an opportunity to provide written submissions in reply on this narrow issue.
156Following the conclusion of the hearing, the applicant proceeded to request “accommodation” for his disabilities by the Tribunal by extending to him a period of time within which he could file further evidence and materials beyond the evidence provided to the Tribunal and the respondent in advance of and at the hearing. While the Tribunal agreed to extend this requested “accommodation” to the applicant, in the sense that no final decision in this matter would be issued before the applicant was medically able to provide the further evidence and materials that he sought to provide, I did issue a Case Assessment Direction in early June 2010, stating:
I have heard the applicant’s evidence and I have all of the written material that he submitted in advance of the hearing, so the applicant does not need to repeat any of that information. If the applicant does file any further material, I will need to consider whether I should receive it, as the hearing on the accommodation issue at this point has been concluded. If I do decide to consider any further material filed by the applicant, I will advise the respondents and afford them with an opportunity to respond.
157To say the least, it is highly unusual for a party to be permitted to file additional evidence and materials following the conclusion of a hearing, except to the extent that this has specifically been invited by the Tribunal. I do not rule out the possibility that, in appropriate circumstances, the accommodation of a party’s needs may require affording the party with an opportunity to file post-hearing evidence and materials, if a sufficient evidentiary basis were provided to establish that the party’s disability prevented them from effectively participating in the hearing and to explain why this issue was not raised during the course of the hearing. In the instant case, beyond his own assertions and medical notes simply confirming an inability to provide materials at a particular time, the applicant has provided no evidentiary basis to support that his disability prevented him from effectively participating in the hearing and providing the necessary evidence at that time. Indeed, my observations are that the applicant was fully able to effectively participate in the hearing and that any needs arising from both his physical and mental disabilities were accommodated at the hearing. Further, as already stated above, no issue was raised at the hearing to suggest that the applicant’s disabilities were preventing him from effectively participating, nor has any explanation been provided by the applicant as to why this issue was not raised at the hearing. Accordingly, I am not satisfied that there is sufficient evidence to establish that the needs arising from the applicant’s disabilities prevented him from effectively participating in the hearing and/or required this Tribunal to afford him with an opportunity to provide post-hearing evidence and materials.
158Nonetheless, I have carefully reviewed and considered all of the post-hearing materials filed by the applicant. Much of this material repeats evidence that already was before me and was understood by me. A good deal of this material addresses the harassment and poisoned work environment issues that I have found to be beyond the scope of the subject-matter of the complaint. Some of the new information contained in these materials already has been addressed by me in the course of my Decision above. To the extent that there is any further new evidence or material, I have reviewed and considered it, and it does not change my findings.
159It is not my intent in this Decision to address all of the applicant’s post-hearing materials in detail. However, there are some allegations made by the applicant regarding the conduct of the hearing that I do wish to address. The applicant alleges that I refused to deal with the clarification about the distinction between the physical and the psychological issues that he provided at the start of the second day. To the contrary, I allowed the applicant to provide this clarification and I listened to his evidence on this point attentively. In the end, however, for all of the reasons discussed above, I have found that a psychological issue had been raised by the applicant’s treating psychiatrist in October 2003, and no acceptable psychiatric clearance to return to work was provided by the applicant to his employer prior to the result of the Work Able assessment in November 2004. It may be true, as asserted by the applicant, that all psychological issues had been resolved by the end of December 2003. The problem with his case on this point is that prior to November 2004, no medical report was provided to the respondent to properly and effectively communicate to them that the applicant had no psychological issues that prevented him from returning to work.
160The applicant also alleges that I did not read the materials that he filed with the Tribunal prior to the hearing. Let me assure the applicant, as I did at the hearing, that prior to the hearing, I had read every page of material that he had submitted to the Tribunal, and I have re-read every page of that material and of the material he filed following the hearing for the purpose of preparing this Decision. This does not, of course, mean that I agree with or accept all of the assertions made by the applicant in this material, for the reasons I have indicated in this Decision.
161In his post-hearing material, the applicant is critical of the interpreter provided for him at the hearing. As indicated above, no such criticisms were raised by the applicant during the course of the hearing. At the start of the hearing, the applicant was asked whether he wanted the interpreter to provide a word for word translation or just to be available to be consulted as needed by the applicant, and the applicant chose to consult with the interpreter as needed. During the course of the hearing, I observed the applicant consulting with the interpreter on a few occasions in order to translate questions or responses, and I observed no difficulty between the interpreter and the applicant on these occasions, nor was any such difficulty raised with me at the hearing.
162The applicant also alleges that he experienced medical problems at the hearing, and so couldn’t provide answers to the questions he was asked. As indicated above, there was one brief moment on the first day of hearing when the applicant started crying. This was not when the applicant was giving his evidence, but rather was when Ms. Holle was giving her evidence. I stopped the hearing and asked the applicant whether he would like a break to compose himself, and we took a 10 minute break before resuming. When we resumed, I checked with the applicant as to whether he was ready to proceed, and he said that he was. Apart from that one brief moment on the first day of hearing, there was no indication that the applicant was experiencing any medical problems at the hearing, nor was there any indication that the applicant had any difficulty understanding the questions that were asked of him or responding to such questions, nor were any such issues raised by the applicant at the hearing.
163The applicant further alleges that he was not allowed to cross-examine Ms. Holle in full. This is not correct. The applicant was given full opportunity to cross-examine Ms. Holle on her evidence in relation to the accommodation issue. What the applicant was not allowed to do, as he agreed at the start of the hearing, was ask questions about the preceding harassment and poisoned work environment allegations, pending my determination as to whether such matters were within the scope of the subject-matter of the complaint.
164The applicant also alleges that he was not allowed to “speak out” at the hearing about the importance of the reference in the Work Able report to an incident alleged to have occurred on December 4, 2003. While I am not sure what the applicant means by “speaking out”, the applicant did give evidence at the hearing that this alleged incident did not happen and he also did ask Ms. Holle questions about it, to which she responded that she was not aware of such an incident and did not know how information about this alleged incident was given to Work Able.
165The applicant further alleges that I am biased against him. He alleges that at one point during the hearing when he was walking around, I made a comment to him that I didn’t see a problem with him walking. I have no recollection of making any such comment. In any event, I do not understand how any such comment, even if made, would amount to bias on my part. This is not a case where the applicant alleged that he had certain restrictions, and these alleged restrictions were disbelieved by me. Rather, this is a case where, accepting the applicant’s restrictions as stated by his own doctor, the respondent was unable to accommodate these restrictions on a permanent basis within the scope of its obligation under the Code.
166The applicant also alleges that I am biased because I failed to accommodate his mental disability. As already indicated above, this is not correct. The applicant alleges that I am biased because I refused to acknowledge his doctor’s medical opinion but relied upon the Work Able assessment, which the applicant describes as outdated. I have reviewed the medical evidence at length above, which is my role as the adjudicator. I certainly did not refuse to acknowledge the medical opinions of the applicant’s doctors, and have reviewed these medical opinions at length above. I have relied upon the Work Able assessment for the reasons indicated above in my Decision. This assessment certainly was not “outdated” as of the time of the applicant’s return from leave in March 2005, which was his first potential opportunity to return to work following the issuance of this report in November 2004. My assessment of and reliance upon medical evidence, even if the applicant does not agree with my findings, does not make me biased.
167The applicant alleges that I am biased because I refused to deal with the harassment and poisoned work environment issues which pre-dated the September 27, 2003 incident. As stated above, the parties agreed to focus the hearing on the accommodation issue, pending my determination as to whether the prior issues were within the proper scope of the subject-matter of the complaint. I have now determined that they are not. This determination, even though it goes against the applicant, does not make me biased.
168The applicant alleges that I am biased because I refused to see that Ms. Holle and her legal counsel were not telling the truth. I fail to understand the basis upon which the applicant could make this allegation, which was made prior to the release of this Decision, given that I had made no determination as to anyone’s credibility at that point. The applicant spends a considerable amount of time in his post-hearing materials attacking Ms. Holle’s credibility on a variety of bases. The problem with this approach is that, like many disability accommodation cases, not much in this Decision turns on my assessment either of Ms. Holle’s or the applicant’s credibility. Rather, this Decision largely turns upon what the medical evidence indicates about the nature of the applicant’s restrictions, both physical and psychological, at various points in time, whether the respondent acted reasonably and in accordance with its obligations under the Code in how it responded to the medical evidence provided to it, whether the applicant could perform the essential duties of his pre-disability position in light of his disabilities, and the scope of the duty to accommodate under the Code in these circumstances. These issues largely did not require me to assess credibility in terms of preferring one witness’ evidence over another’s, as even if I accepted the applicant’s evidence, I still could find no violation of the Code.
169The applicant next alleges that I am biased because I didn’t deal with an incident a few days prior to the September 27, 2003 incident, where the applicant alleges that he was assaulted by a security guard working at the respondent hotel and alleged incidents of harassment that the applicant says occurred on September 27, 2003 prior to the incident which was the cause of his injury. While it is correct that these prior issues were not addressed at the hearing, this was because there was a dispute between the parties as to whether these issues fell within the subject-matter of the complaint, and everyone, including the applicant, agreed that the two hearing days we had scheduled would focus on the accommodation issue, pending my determination as to whether prior issues were within the proper scope of the complaint. As already stated above, the accommodation issue is not about what precipitated the applicant’s injuries sustained as a result of the September 27, 2003 incident, as where and how these injuries were sustained is of no consequence on the question of whether his needs arising out of these injuries could be accommodated, which was the only issue being addressed at the hearing.
170Accordingly, having reviewed and considered all of the materials filed by the applicant subsequent to the hearing, I find that I am not biased and that no evidence has been advanced by the applicant sufficient to raise any reasonable apprehension of bias on my part, and I further find no basis to change my assessment of the evidence and findings on the issues as set out in this Decision.
171For all of the foregoing reasons, the Application is dismissed.
Dated at Toronto, this 12th day of April, 2011.
“Signed by”
Mark Hart
Vice-Chair